Opinion
15-P-555
02-22-2016
COMMONWEALTH v. TYLER B. GOODWIN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Tyler B. Goodwin, appeals from an order revoking his probation. He contends that the judge erred in finding that the defendant had violated probation because the Commonwealth did not prove by a preponderance of the evidence that the defendant had committed a new criminal offense (rape). The defendant argues that the exculpatory evidence outweighed the inculpatory evidence and rendered the judge's decision infirm. Essentially, the defendant argues that the judge improperly weighed the evidence.
The judge was not required to credit or to give dispositive effect to the defendant's claim that he was too intoxicated to understand that the victim was unable to consent to sexual intercourse. It is the exclusive province of the hearing judge to assess the weight of the evidence. Commonwealth v. Bukin, 467 Mass. 516, 519 (2014).
There is nothing in the record to indicate that the judge abused his discretion. See Commonwealth v. Durling, 407 Mass. 108, 111-112 (1990). The defendant does not challenge the judge's finding that the defendant violated probation by procuring alcohol for minors and agrees that the record supports the finding. Instead, he argues that the sentence was imposed "for rape, not for procuring alcohol for a minor," and because the evidence of the rape was insufficient, the sentence is too harsh such that the matter should be remanded for resentencing. The defendant does not appear to understand that when sentence was imposed after the judge found that the defendant had violated probation, he was sentenced to the mandatory minimum term for the underlying crime of drugging a person for sexual intercourse, not the new offenses that served as the basis of the revocation.
Order revoking probation affirmed.
By the Court (Cypher, Meade & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 22, 2016.